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A Congress for the Many, or the Few?

OUT of work and stuck with an expensive mortgage, my friend was on the verge of losing her house. Attempts to get the bank to modify her loan led to a situation Kafka would have recognized: scores of letters, hundreds of phone calls — but no modification. Then she called one of her senators. Soon a member of the senator’s staff had contacted the Office of the Comptroller of the Currency, the federal agency that regulates national banks. Not long after, my friend received the loan modification she had been requesting, unavailingly, for years.

A happy ending? Only for my friend. For the country, what government workers call “constituent services” — really the meddling of representatives in the business of executive agencies — is a sign of federal dysfunction, and one with consequences. Congress, arguably the most powerful branch of government, seems to have given up on the main thing the Constitution authorizes it to do: pass laws.

Instead, it is busy helping Americans one at a time, an impractical and outrageously expensive operation, which is not only a kind of favoritism masquerading as compassion, but a thumb in the eye of the Constitution, with its much admired blueprint for separation of powers.

The authors of the Constitution were clear: Congress would make the laws, and the executive branch would see that they were carried out. Instead, a vast constituent-services machine, likely costing billions of dollars a year, is letting Congress micro-, not macro-manage, the executive branch.

Visit the Web site of virtually any senator or representative, and you’ll see a statement like the one by Senator Jim Webb, Democrat of Virginia, which promises constituents that solving their “individual difficulties” is “among my highest priorities.”

But solving people’s problems individually takes the pressure off Congress to solve society’s problems generally. By providing constituent services, Congress is like a fire department that doesn’t put out fires, but simply rescues those who scream the loudest. The danger is that “as constituent service becomes such a prominent part of the job, legislative duties suffer,” writes Dennis F. Thompson, a professor of political philosophy at Harvard. He describes such casework, “unmentioned in the Constitution” and “unimagined by the founders,” as a brand of low-level corruption.

That’s because Congress can hobble any agency that doesn’t do its bidding. Every time a Congressional staffer contacts an executive agency on behalf of a constituent, there’s an implicit threat: cooperate, or else.

The standard argument in favor of constituent services — a catchall term for actions taken by legislators on behalf of residents of their states or districts, also known as casework — is that, in order to make informed decisions about the functioning of government, Congress needs to know what the agencies are doing. Fair enough. But Congress already budgets millions of dollars a year for investigations; that, along with its subpoena power, enables it to find out almost anything it needs to know. Besides, no one in Congress even pretends that most constituent services are related to requests for information about government performance. If anything, the requests are for special treatment, the very opposite of what lawmakers should be after.

Take the case of Gerald E. Bisbee Jr., chairman of ReGen Biologics, a medical device company in Hackensack, N.J., that several years ago was having trouble getting F.D.A. approval for a knee implant called Menaflex. Mr. Bisbee did, he said at the time, “what people do all the time in Washington: we went to our congressmen, we went to our senators.” Soon the F.D.A. was inundated with calls from the New Jersey Congressional delegation — asking not that the F.D.A. follow its procedures, but that it circumvent them. The upshot: the F.D.A. approved the device, ignoring the wishes of its own scientists. Then, two years later, it announced that it would revoke the approval, in a highly unusual mea culpa in which it admitted it had succumbed to Congressional pressure.

Nothing happened to the four members of Congress, who, according to The Times, said they were “merely doing their jobs.” And many Americans seem to agree that it’s their job to help constituents — a service that, on the surface, may seem akin to motherhood and apple pie. As Professor Thompson writes, “If the conduct does not involve bribery, extortion, or an illegal campaign contribution,” it is seen as not just “acceptable, but admirable.” Indeed, Senator Pothole — a nickname given to Alfonse M. D’Amato and others known for responding to even the most quotidian constituent concerns — is a kind of American folk hero.

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Credit
Tim Bower

ONLY the rarest cases seem to cross a line (in part because the line is pretty much imperceptible). Former Senator Dennis DeConcini of Arizona, who received $85,000 in campaign contributions from the banker Charles H. Keating Jr., was among the most bare-knuckled of Mr. Keating’s “constituent services team” — the so-called Keating Five — persuading the Federal Home Loan Bank Board in the 1980s to prop up his failed savings and loan company. After he was investigated — and cleared — by the Senate Ethics Committee, Mr. DeConcini said he would continue to be “aggressive” in lobbying federal agencies on behalf of constituents.

It’s particularly galling when the constituents served are also campaign contributors. But Congress shouldn’t be pulling strings for anyone. A properly operating legislature apportions benefits and burdens in a way that balances competing interests. But the ability to “manage” the problems of individuals relieves senators and representatives of the obligation to conduct that balancing. And open debate, the hallmark of any democratic system, is missing. Constituent services is an unrepresentative function of what is meant to be the representative branch.

Eugene Volokh, a professor of constitutional law at U.C.L.A., believes public officials should have the same right to petition the government as private citizens; in fact, he says, it may be “important to have the unelected administrators be accountable to many democratically elected representatives, and not just to one distant and very busy president.”

Which sounds good, if you think Congress can be trusted to look out for the many while making phone calls for the few. But it can’t.

Constituent-services operations, no matter how vast, can’t help more than a tiny fraction of Americans. Particularly likely to receive assistance are the English-speaking, the educated, and the connected, who can write the most convincing letters, or make the largest campaign contributions. For that reason, according to Richard L. Revesz, the dean of the N.Y.U. law school, “the practice has negative effects on due process values.”

Nor do Americans have equal access to their legislators. Each state has two senators, who may represent as few as 568,000 people (Wyoming) or more than 37 million (California). But it’s not just about numbers. Some representatives are focused more on legislating than on casework, which is to their credit — but try telling that to their constituents, who may have a harder time getting government benefits than residents of other states.

And who pays for their exercise in misrepresentation? Congress’s operating budget — the money it spends on itself — grew to about $4.7 billion in 2010 from about $2.5 billion in 2000 — an increase of more than 80 percent.

It’s hard to know exactly how much of that money goes to constituent services. But conversations with former Congressional staffers suggest that many of the people working on the Hill, and nearly all of those in district offices, are focused on helping constituents.

The administrative costs are only the tip of the iceberg. A high proportion of constituent-services cases involves attempts to wrest benefits from the government (Veterans Affairs, the Social Security Administration) or to keep it from collecting money owed it (the I.R.S.). Aren’t the legislators just getting people benefits they are entitled to already? If the cases were open-and-shut, the constituent wouldn’t need the help in the first place.

Yes, executive agencies require oversight, but their decisions are already reviewed by administrative law judges — federal employees who, unlike representatives or senators, aren’t seeking votes and campaign contributions. And, as a last resort, there are the courts, which, for all their inefficiencies, have the virtue of independence.

Other protections can be put in place, but they shouldn’t be the province of individual legislators. Congress was never meant to be a retail operation.

Fred A. Bernstein is a journalist and a lawyer in New York.

A version of this op-ed appears in print on September 9, 2012, on page SR4 of the New York edition with the headline: A Congress for the Many, or the Few?. Today's Paper|Subscribe